Citation NR: 9612059
Decision Date: 04/30/96 Archive Date: 05/09/96
DOCKET NO. 93-11 833 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Togus,
Maine
THE ISSUE
Entitlement to restoration of a 100 percent rating for status
post severe head injury with some loss of ability to retain
recent memory and seizure disorder.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
Michelle E. Jensen, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans’ Appeals (BVA
or Board) on appeal from a December 1991 rating decision by
the Department of Veterans Affairs (VA) Regional Office in
Togus, Maine (RO), which denied the benefit sought on appeal.
The veteran, who had active service from August 1981 to
October 1986, appealed that decision to the BVA, and the case
was referred to the Board for further review.
A January 1995 BVA action remanded this case to the RO for
the collection of recent medical records and to afford the
veteran a VA examination. Following this development, the
case was returned to the Board for further appellate review.
Initially, the Board notes that the veteran’s representative
has raised an informal claim of entitlement to an increased
rating based on individual unemployability. This claim is
not properly before the Board at this time. In this regard,
the Board refers to the January 1995 BVA action which
recognized that the veteran’s representative raised an
informal claim for entitlement to individual unemployability
in its September 1993 informal hearing brief. This issue was
referred back to the RO for appropriate consideration.
In September 1995, the RO sent a letter to the veteran
requesting that he fill out and return VA Form 21-8940,
Veteran’s Application for Increased Compensation Based on
Unemployability. The veteran has not returned this form.
Once an informal claim has been received and the RO has
forwarded an application for a formal claim to the veteran,
the RO must receive the formal claim within one year from the
date such application was sent to the veteran for the claim
to be considered filed as of the date of receipt of the
informal claim. 38 C.F.R. § 3.155 (1995). As the veteran
did not pursue a formal claim based on individual
unemployability, the RO did not consider the issue prior to
the case being returned to the Board. The Board acknowledges
that the veteran’s representative again has raised an
informal claim for entitlement to increased compensation
based on individual unemployability. Accordingly, this issue
is referred back to the RO for the appropriate consideration.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the RO erred in reducing his rating
for status post severe head injury with some loss of ability
to retain recent memory and seizure disorder from 100 percent
to 60 percent. According to the veteran, his seizure
disorder has increased rather than decreased in severity.
The veteran maintains that the evidence supports his claim.
Therefore, a favorable determination has been requested.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against an evaluation in excess of 60 percent for
status post severe head injury with some loss of ability to
retain recent memory and seizure disorder.
FINDINGS OF FACT
1. The veteran’s seizures which are classified as minor
occur on average approximately 2 to 3 times a month.
2. The veteran’s seizure disorder interferes with his
ongoing daily activities.
CONCLUSION OF LAW
The schedular criteria for an evaluation in excess of 60
percent for status post severe head injury with some loss of
ability to retain recent memory and seizure disorder have not
been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§§ 3.102, 4.20, 4.124a, Diagnostic Codes 8045, 8910-8914
(1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board finds that the veteran’s claim is well grounded
within the meaning of 38 U.S.C.A. § 5107 (a) (1991); Murphy
v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski,
1 Vet. App. 49, 55 (1990). That is, the Board finds that the
veteran has presented a claim which is not implausible when
his contentions and the evidence of record are viewed in the
light most favorable to those claims. The Board is also
satisfied that all relevant facts have been properly and
sufficiently developed and that no further assistance to the
veteran is required in order to comply with the duty to
assist him mandated by 38 U.S.C.A. § 5107(a) (West 1991).
Based on service medical records which indicated that the
veteran sustained a head injury in April 1986 when he fell
from a burning building, and a February 1989 VA examination
which revealed that the veteran had difficulty with recent
memory and small seizures, a March 1989 rating decision
granted service connection for status post severe head injury
with some loss of ability to retain recent memory and seizure
disorder. The RO assigned a 100 percent evaluation.
A December 1991 rating decision noted that an August 1991 VA
examination and consultation report from the veteran’s
regular VA physician indicated a decrease in the frequency of
seizures. Therefore, this rating decision reduced the
veteran’s disability rating to 80 percent. A May 1994 rating
decision, based on a January 1994 VA examination which did
not indicate that the veteran averaged at least one major
seizure in three months over the last year or more than ten
minor seizures a week, reduced the veteran’s disability
evaluation to 60 percent. This rating has remained in effect
until the present.
Disability evaluations are determined by comparing the
veteran’s current symptomatology with the criteria set forth
in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. § Part 4 (1995). Where entitlement to
compensation has been established and an increase in the
disability rating is at issue, the present level of
disability is of primary concern. Francisco v. Brown, 7
Vet.App. 55, 58 (1994).
The VA has the duty to acknowledge and consider all
regulations which are potentially applicable to the
assertions and issues raised in the record and to explain the
reasons and bases for its conclusions. Schafrath v.
Derwinski, 1 Vet.App. 589 (1991). Each disability must be
reviewed in relation to its history and emphasis must be
placed upon the limitation of activity imposed by the
disabling condition. 38 C.F.R. § 4.1 (1995). Medical
reports must be interpreted in light of the whole recorded
history, and each disability must be considered from the
point of view of the veteran working or seeking work.
38 C.F.R. § 4.2 (1995). Ratings which have continued for
five or more years at the same level and are subject to
temporary or episodic improvement will not be reduced on any
one examination, except in those instances where all the
evidence of record clearly warrants the conclusion that
sustained improvement has been demonstrated. 38 C.F.R.
§ 3.344 (1995). The basis of a disability evaluation is the
ability of the body to function as a whole under the ordinary
conditions of daily life including employment. 38 C.F.R.
§ 4.10 (1995).
When a reasonable doubt arises regarding the degree of
disability such doubt will be resolved in favor of the
claimant. 38 C.F.R. § 4.3 (1995). Where there is a question
as to which of two evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
38 C.F.R. § 4.7 (1995).
When an unlisted condition is encountered it will be
permissible to rate under a closely related disease or injury
in which not only the functions affected, but the anatomical
localization and symptomatology are closely analogous.
Conjectural analogies will be avoided, as will the use of
analogous ratings for conditions of doubtful diagnosis, or
for those not fully supported by clinical and laboratory
findings. Nor will ratings assigned to organic diseases and
injuries be assigned by analogy to conditions of functional
origin. 38 C.F.R. § 4.20.
For brain disease due to trauma, purely neurological
disabilities such as epileptiform seizures, will be rated
under the diagnostic codes specifically dealing with such
disabilities. 38 C.F.R. § 4.124a, Diagnostic Code 8045
(1995).
Under the rating criteria for epileptiform seizures, a major
seizure is characterized by the generalized tonic-clonic
convulsion with unconsciousness. A minor seizure consists of
a brief interruption in consciousness or conscious control
associated with staring or rhythmic blinking of the eyes or
nodding of the head, or sudden jerking movements of the arms,
trunk, or head or sudden loss of postural control. When
continuous medication is shown necessary for the control of
epilepsy, the minimum evaluation will be 10 percent. A 60
percent evaluation for major and minor epileptic seizures
requires an average of at least 1 major seizure in 4 months
over the last year; or 9-10 minor seizures per week. An 80
percent evaluation requires an average of at least 1 major
seizure in 3 months over the last year; or more than 10 minor
seizures weekly. A 100 percent evaluation requires an
average of at least 1 major seizure per month over the last
year. 38 C.F.R. § 4.124a, Diagnostic Codes 8910-8914 (1995).
An August 1991 VA examination indicated that the veteran was
being seen by a VA physician on a regular basis for the
residuals of a head injury, including what the veteran
described as severe headaches. The report noted that the
veteran’s regular VA physician felt these “headaches” were
most likely partial complex seizures. At one point in time,
the veteran experienced 2-3 such headaches per week, but at
the time of examination the veteran was taking 1000
milligrams of Tegretol per day which had reduced the
frequency of headaches to 1 per week. The veteran described
the headaches as a sudden onset of sharp pain, followed by a
period of confusion lasting from 15 to 30 minutes. The
veteran reported that working more than 20 to 25 hours per
week brought on more headaches.
Examination revealed that the veteran’s pupils were equal and
reacted equally to light and accommodation. The veteran’s
extraocular motions were intact and his facial musculature
was symmetrical with smile and frown. Sensation was normal
on the tongue, both sides of the face, and all four
extremities. Muscular strength was normal and symmetrical.
The examiner diagnosed the veteran with status post severe
head injury and called attention to the recent evaluation
conducted by the veteran’s regular physician. The examiner
noted that the veteran’s symptoms were consistent with
partial complex seizure disorder.
The August 1991 evaluation by the veteran’s regular VA
physician indicated that the veteran had been seen for his
seizure disorder for several years. According to the
physician, the veteran’s seizures had diminished in intensity
since taking the medication Tegretol. At this point, the
seizures manifested themselves as pain in the left temporal
area. During these episodes, the veteran reported, he had no
alteration of consciousness, but felt tired and fatigued.
The veteran reported that he worked a lot of overtime. He
was told to cut back on his work and to alter his schedule
for taking his medication.
A March 1992 consultation revealed that the veteran’s
seizures began as pain usually in the left temporal area and
the veteran sometimes experienced a numb or prickling
sensation in the frontal half of his head. The examiner
noted that the veteran experienced no loss of consciousness,
automatic behavior, or olfactory auras with these episodes.
The examiner compared a CT scan done in February 1992 with
the last one taken in December 1988 and noted that there was
no significant difference between the two. The most recent
CT scan revealed slight enlargement of the occipital horn of
the right lateral ventricle and slight prominence of the
cortical sulci in the right occipital lobe in the posterior
part of the right parietal lobe. The examiner noted that all
of the abnormalities shown on the scan were consistent with
the veteran’s clinical picture. The veteran reported that he
had episodes of several days of head pain, but did not have
any overt seizures. The veteran also reported that he was
not working full time and sometimes stayed home from work as
a result of these episodes.
In a December 1992 Social Work Service Report, the veteran
reported that he was self-employed and worked on a seasonal
basis. According to the veteran, he had trouble remembering
things and following directions which is why he could no
longer do carpentry work. In addition, the veteran noted
that he was subject to seizures and had to take time off when
he felt one coming.
A January 1993 treatment record indicated that the veteran
had improved because he was taking medication on a regular
basis. The veteran reported two episodes of severe head pain
in the past month. In June 1993, the veteran reported that
he had had a few mild seizures. He indicated that these
seizures increased with stress. A November 1993 treatment
record noted that the veteran had occasional partial
seizures. During these seizures, the veteran reported, he
acted “like a zombie.” His eyes stayed open, he was confused
and he could not stand up and walk. The veteran noted that
the episodes started with head pain. The veteran’s
medication was increased to 1400 milligrams of Tegretol.
At a January 1994 VA examination, the veteran reported that
his seizures occurred approximately two times a month. He
noted that he still drove a car and would pull over to the
side of the road when he felt an oncoming seizure. The
veteran denied any loss of time from work as a result of
these episodes. Examination revealed that the pupils were
equal and reacted equally to light and accommodation. The
veteran’s extraocular motions were intact and his facial
musculature was symmetrical smile and frown. His sensation
and muscular strength were normal and symmetrical in all four
extremities. The veteran was diagnosed as post-head injury
with possible partial complex seizure disorder.
A May 1994 VA treatment record indicated that the veteran had
occasional seizures. According to the veteran, his last
seizure was three days before this appointment. The veteran
reported that he was working full time and was not driving.
The veteran noted that the seizures took his breath away, but
he did not lose consciousness and could maintain his balance.
He described the seizures as lasting at a low level for two
or more hours. In November 1994, the veteran reported 1 or 2
seizures per month which were usually secondary to stress or
fatigue. The veteran noted that he had no convulsions during
these seizures.
In a March 1995 VA examination, the veteran reported a
history of seizures following a head injury in 1986. The
veteran noted that he had one or two convulsive seizures soon
after this injury. Since that time, the seizures have
started as temporal pain and he sometimes has to lie down for
a little while. The veteran noted that these episodes make
him slightly disoriented, dizzy and fatigued for a few hours.
The examiner noted that the veteran’s memory was poor and,
therefore, he was a poor historian regarding the frequency of
his seizures. However, the veteran has approximately 2 to 4
seizures per month. The veteran reported that he was working
occasionally on a part-time basis and often had to miss work
as a result of temporal pain which he felt may represent a
seizure.
Examination revealed normal pupils and full extraocular
movements. The veteran had no nystagmus or diplopia. The
veteran’s eyegrounds were normal and his optic discs were a
little pale, but within the normal range. Peripheral vision,
facial movement and sensation, hearing, lower cranial nerves,
speech, and tongue protrusion were all normal. The veteran
performed general, rapid alternating movements rather slowly,
but he had no dysmetria. His tendon reflexes were fairly
hypoactive and equal with normal gait, stance and balance.
The diagnosis was a genuine seizure disorder. The examiner
noted evidence of encephalomalacia occipital pull on both
sides of the occipital bone and some evidence of mesal
temporal sclerosis. Although the veteran only has 2 to 4
seizures a month, the examiner noted that the veteran’s
complex partial seizures interfere with his ongoing activity
because the veteran is apprehensive about having a seizure.
If the veteran were not on medication, the examiner opined,
he would have full blown seizures on occasion. An MRI with
contrast and an EEG were recommended by the examiner.
In April 1995, an EEG was conducted. The record was
dominated by a symmetrical 10 to 11 herz alpha rhythm. No
other rhythms of significance were noted apart from muscle
artifact. No localizing or paroxysmal features were present
and no change was noted during periods of hyperventilation or
photic stimulation. The record was normal. As a result of
the veteran’s claustrophobia, an MRI was not performed.
After a thorough review of the probative evidence, the Board
finds that the veteran’s status post severe head injury with
some loss of ability to retain recent memory and seizure
disorder does not warrant an evaluation in excess of 60
percent. Specifically, the Board notes that the veteran does
not lose consciousness or convulse during a seizure and,
therefore, these seizures may be classified as minor. In
addition, the record reveals that the veteran averages
approximately 2 to 3 seizures a month. The latest VA
examination noted that the veteran averages approximately 2
to 4 seizures a month. This does not meet the criteria for a
100 or an 80 percent evaluation. The Board recognizes that a
60 percent rating requires approximately 9 to 10 minor
seizures per week. However, the Board also notes that the
latest VA examination indicated that the seizure disorder
significantly interferes with the veteran’s ongoing daily
activities because of his apprehension of undergoing a
seizure. Therefore, the Board concludes that a 60 percent
rating adequately reflects the disability picture associated
with the veteran’s status post severe head injury with some
loss of ability to retain recent memory and seizure disorder.
The potential application of various provisions of Title 38
of the Code of Federal Regulations (1995) have been
considered whether or not they were raised by the veteran.
See Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991).
Specifically, although the veteran was not rated at 100
percent for five years or more, the Board has taken into
consideration 38 C.F.R. § 3.344 (1995). In this regard, the
Board notes that a series of examinations and treatment
records have shown that the veteran’s seizures have improved
with the use of medication and, therefore, the decision to
reduce the veteran’s disability evaluation was not based on
only one examination showing temporary improvement.
ORDER
An evaluation in excess of 60 percent for status post severe
head injury with some loss of ability to retain recent memory
and seizure disorder is denied.
ALBERT D. TUTERA
Member, Board of Veterans’ Appeals
The Board of Veterans’ Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans’ Appeals.
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